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FLORIDA TORT REFORMERS OPTIMISTIC

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TALLAHASSEE, Fla. -- Tort reform efforts that were derailed in Florida earlier this year are back on track and gathering steam.

The Florida House and Senate last week continued monthly meetings that began in September to hear testimony from employers, plaintiffs lawyers and others. A final meeting is scheduled for early January, and reform legislation could be drafted in time for the legislative session that begins March 3.

Tort reform advocates say they have a good shot at seeing some type of reform law passed in 1998, after a bill fell short this year.

"We feel better about it than we have in a long time," said E. James Brainerd, vp and general counsel for the Florida Assn. of Insurance Agents in Tallahassee.

"We think our chances are better than they have ever been," agreed Jodi Chase, an attorney with the firm Broad & Cassel and a lobbyist for Associated Industries of Florida, a 7,000-member business group based in Tallahassee.

But, she cautioned: "Passing tort reform is harder than anything else. While we feel this is a good opportunity, we certainly are not confident. It's going to take a lot of work."

The Florida House and Senate have been collecting testimony from business groups, trial attorneys, insurance industry representatives, government officials and others at the monthly hearings. The Senate has indicated it is particularly interested in hearing how the current civil justice system may be dampening economic development in the state.

Employers indicate that Florida's tort system has kept them bottled up.

In a study released earlier this year, Florida Chamber of Commerce members with 10 or more employees cited "fear of unfair lawsuits" as the main obstacle to expansion.

Small employers have the same fear, said Lance Lozano, assistant director of governmental and legislative affairs at Florida United Business Assn. Most of the group's 8,000 members have 10 or fewer employees.

"The concern in the small business community is the fear of lawsuits," he said. "They fear hiring extra people or expanding their businesses because they may get sued."

Employers have indicated during the hearings that they are reluctant to hire because liability statutes in the state hold them responsible for negligent acts of their workers. Some business owners say the fear of suits also is stopping them from introducing new products and services.

Proponents of reform hope that a version of the Florida Accountability and Individual Responsibility Act or a similar bill can make it through the 1998 legislative session. The FAIR Act failed to gain final approval before this year's session ended in May.

A study released in October by a coalition of business groups, local governments and professional organizations called Tort Reform United Effort indicates that provisions of the FAIR Act would reduce the amount of litigation in the state and lower tort costs by $1 billion.

Mr. Brainerd of the Florida Assn. of Insurance Agents said reform is needed because of the high dollar amounts "siphoned off into attorneys fees, court costs" and other areas apart from what claimants receive.

The Academy of Florida Trial Lawyers is representing plaintiffs attorneys' interests at the legislative hearings. While the group could not provide an official to comment on its concerns, summaries of testimony before the Senate committee show attorneys don't agree with employers' concerns.

Members of the academy said during the hearings that there is not an explosion of negligence or personal injury litigation in Florida. Instead, the most significant area of litigation involves businesses suing businesses, attorneys said.

TRUE is representing its members at the legislative hearings and pressing for changes in several areas. Those changes, some of which are contained in the FAIR Act, include:

*Eliminating vicarious liability in the state.

*Raising the standard of proof before punitive damages could be awarded.

*Allowing punitive damages only for intentional misconduct.

*Barring lawsuits against products more than 12 years old.

*Capping attorneys fees.

*Abolishing joint and several liability in cases involving non-economic damages of $25,000 or less.

Businesses are particularly interested in seeing vicarious liability abolished in Florida, one of only a handful of states with a version of the doctrine in force.

Vicarious liability is the imposition of liability on one person for the actionable conduct of another based solely on a relationship between the two persons. In Florida, employers can be held responsible for a worker's negligent acts when those acts were carried out within the scope of employment.

Businesses such as rental car companies are especially interested in seeing the doctrine abolished.

"Vicarious liability means that if anyone driving a rental car causes an accident, liability is imputed to the owner of the car" regardless of whether the driver was at fault, explained Howard Conklin, executive director of government relations for Republic Industries Inc., the Fort Lauderdale, Fla.-based owner of Alamo Rent A Car Inc. and National Car Rental System Inc.

"If we're negligent on the maintenance of a car, obviously we should remain liable for any acts of negligence," Mr. Conklin said, but he added that rental car companies have been held vicariously liable for judgments in accidents that were not the companies' fault.

"We want that reform to take us out of the 19th century," Mr. Conklin said of abolishing vicarious liability.

Plaintiffs attorneys argued in the Senate hearings that the doctrine encourages corporate responsibility. Attorneys said limiting the liability of rental car businesses would remove the incentive for companies to rent to safe drivers.

Trial lawyers testified that out-of-state tourists may not be available as defendants in cases involving a rental car accident. Therefore, without vicarious liability, Florida taxpayers might have to bear costs associated with care to accident victims.